• James Heller/Mariel Estigarribia

BIDEN EXECUTIVE ORDER ISSUED RE: MANDATORY VACCINATION APPLICABLE TO FEDERAL CONTRACTORS

LINK: Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors | The White House.

SUMMARY:


All executive departments and agencies are to ensure that certain contracts (and contract like instruments) include a clause requiring all contractors (and subcontractors) (and all lower-tiered subcontracts): (i) to comply with all guidance for prime/sub workplace locations published by the Safety Federal Workforce Taskforce (“SFTF”); of which (ii) all SFTF guidance shall apply to any workplace locations (as specified by SFTF) in which an individual is working on or in connection with a Federal Government contract. It is expected that this clause will include a vaccination requirement similar to the one issued in President Biden’s Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, which states: “Each agency shall implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.”

The still-to-come federal worker mandatory vaccination requirements will be established through guidelines (“Guidelines”) set forth by the SFTF– such Guidelines to be provided by September 24, 2021.

Prior to issuance of the September 24 SFTF new Guidelines, the Director of OMB (“Director”) shall determine whether the SFTF Guidelines will promote economy and efficiency. Such determination shall be published in the Federal Register.

The mandate on federal contractors will be in full effect upon:

· An affirmative Determination by the Director;

· The Director’s approval of the SFTF Guidelines; and

· Subsequent issuance of such SFTF Guidelines.

The EO further states that the FAR Council shall, on October 8, 2021, amend FAR to begin implementation of the clause requirement into procurement solicitation and contracts. Additionally, agencies not subject to FAR shall begin similar implementation on October 8, 2021 (for effect after October 15, 2021).

The EO sets the effective date (“Effective Date”) of October 15, 2021 – that all applicable contracts shall include the clause.

WHICH CONTRACTS WILL BE AFFECTED BY THE EO:

The EO applies to any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument, if:


a. it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;


b. it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;


c. it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29

C.F.R. 4.133(b); or


d. it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

The EO does not apply to:

(1) grants;


(2) contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;


(3) contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation;


(4) employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation; or


(5) subcontracts solely for the provision of products.

EXCEPTIONS TO THE EO:

Exceptions exist for implementation of the clause where agencies have issued a solicitation before the Effective Date, and a new contract is entered into within 30 days of the Effective Date. Such contracts are only strongly encouraged to follow the Guidelines (e.g. not required to include the clause). But, where the contracts initially subject to the aforementioned exceptions are subsequently renewed or an option is exercised, the new clause will be mandatory. Additionally, for (1) all existing contracts, solicitations issued between the date of the EO and the Effective Date, and (2) all contracts entered between the date of the EO and the Effective Date, the exception exists that agencies are only “strongly encouraged” to ensure the Guidelines.

APPLICATION TO CONTRACTS INVOLVING SERVICES NOT SUBJECT TO SCA IS QUESTIONABLE AT THIS POINT IN TIME:

Presently (as the date of this post), it is unclear whether the clause will apply to procurement contracts for services that are not subject to SCA. The EO states that the EO will apply to “procurement contracts or contract-like instruments for services,” which may mean “a contract the principal purpose of which is to furnish services in the United States through the use of service employees, and any subcontract of any tier thereunder,” which is the same test as determining whether the SCA applies. If this is the case, then it is possible that service contracts that are not subject to SCA will not be subject to the clause. More guidance is anticipated in the Guidelines to be issued on September 24, 2021.


MOVING FORWARD:


Important information will be released by the Federal Government in the near future through the Guidelines. It is pivotal for Federal Contractors to stay cognizant of the changing landscape.

For further information or guidance on whether a mandatory vaccination policy is right for your Federal Contracting company, contact: Mariel Estigarribia at mie@fellplaw.com, or Jim Heller at jwh@fellplaw.com.

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